The Trustee for Percy HV Unit Trust T/A GPE HV Pty Ltd

[2022] FWCA 2333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for Percy HV Unit Trust T/A GPE HV Pty Ltd

(AG2022/2145)

GPE HV Pty Ltd Single Enterprise Agreement 2022

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 13 JULY 2022

Application for approval of the GPE HV Pty Ltd Single Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the GPE HV Pty Ltd Single Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for Percy HV Unit Trust T/A GPE HV Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 3.4.7 – Deductions.
·   Clause 7.8.5 – Public Holidays.
·   Clause 8.1.7 – Termination of Employment.

However, noting clause 5.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 July 2022. The nominal expiry date of the Agreement is 13 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the Trustee for Percy HV Unit Trust, trading as GPE HV Pty Ltd, applied for the approval of the GPE HV Pty Ltd Single Enterprise Agreement 2022. The application arose from negotiations between the employer and the union, which resulted in an enterprise agreement. The union sought to have the agreement approved under the Fair Work Act 2009 to ensure it became legally binding on the employees covered by the agreement. The legal issues before the court were whether the agreement met the statutory requirements for approval and whether it was a good faith bargain.

The court examined the application to determine if the agreement was fairly negotiated and if it contained the necessary provisions to be approved. The Trustee argued that the agreement was a genuine outcome of the bargaining process and met all the statutory requirements. The union also provided evidence of the negotiation process and the terms of the agreement. The court considered the evidence and concluded that the agreement was fairly negotiated and contained all the necessary provisions to be approved. The court found that the agreement met the good faith test and was a bona fide outcome of the bargaining process.

The court approved the GPE HV Pty Ltd Single Enterprise Agreement 2022 and made an order that it be registered with the Fair Work Commission. The Trustee was directed to provide a copy of the approved agreement to the union and the Fair Work Commission within the specified timeframe. The court also directed that the agreement be published on the Fair Work Commission's website. The union and the Trustee were ordered to comply with the agreement, and any disputes arising from it would be referred to the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established